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DaSilva v. Cascade County Detention Center

United States District Court, D. Montana, Great Falls Division

September 27, 2018



          John Johnston United States Magistrate Judge

         Plaintiff Robert DaSilva has filed the following motions: Motion for Security of Cost (Doc. 30.); Motion for Summary Judgment/Default Judgment (Doc. 31); Motion for Leave to File Motion for Reconsideration of Order denying Motion for Appointment of Counsel (Doc. 43); Motion to Amend to Correct Spelling of Defendants' Names (Doc. 45); Motion Opposing Untimely filed Response (Doc. 49); Motion for Leave to File Motion for Reconsideration (Doc. 56); and Motion to Amend (Doc. 58). In addition, Defendants have filed a Motion for Partial Summary Judgment (Doc. 64).

         Aside from Mr. DaSilva's motion to correct the spelling of Defendants' names (Doc. 45), all motions will be denied.

         I. Motion for Security of Cost (Doc. 30)

         Mr. DaSilva moves pursuant to “Civil Rule 67.3”[3] for the Court to secure a bond from Defendants in the amount of $3, 383, 000.00 based upon his motion for summary judgment or default judgment. Rule 67(a) of the Federal Rules of Civil Procedure provides that “in an action in which any part of the relief sought is a judgment for a sum of money . . . a party . . . by leave of court, may deposit with the court all or any part of such sum . . . ” Rule 67 is not generally employed as a means by which a defendant can be required to prepay a potential judgment. Regardless, as set forth below, Mr. DaSilva's motion for summary judgment/ default will be denied and therefore the motion for security of costs will also be denied.

         II. Plaintiff's Motion for Summary Judgment/Default Judgment (Doc. 31)

         In his Motion for Summary Judgment or Alternatively for Default Judgment, Mr. DaSilva argues Defendants admitted to certain facts in their Answer and failed to respond to certain allegations which entitles him to judgment as a matter of law. (Doc. 31.) Although some facts have been admitted, Defendants have not admitted liability and Mr. DaSilva has not established that there is no genuine dispute as to any material fact. The motion for summary judgment/default judgment will be denied.

         A. Standard

         Summary judgment is appropriate when the moving party “shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). Under summary judgment practice, “[t]he moving party initially bears the burden of proving the absence of a genuine issue of material fact.” In re Oracle Corp. Sec. Litig., 627 F.3d 376, 387 (9th Cir. 2010) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). The moving party may accomplish this by “citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials” or by showing that such materials “do not establish the absence or presence of a genuine dispute, or that the adverse party cannot produce admissible evidence to support the fact.” Fed.R.Civ.P. 56(c)(1)(A), (B).

         “Where the non-moving party bears the burden of proof at trial, the moving party need only prove that there is an absence of evidence to support the non-moving party's case.” Oracle Corp., 627 F.3d at 387 (citing Celotex, 477 U.S. at 325); see also Fed. R. Civ. P. 56(c)(1)(B). Summary judgment should be entered, “after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.” See Celotex, 477 U.S. at 322. “[A] complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial.” Id. at 323. In such a circumstance, summary judgment should be granted, “so long as whatever is before the district court demonstrates that the standard for entry of summary judgment, as set forth in Rule 56(c), is satisfied.” Id.

         If the moving party meets its initial responsibility, the burden then shifts to the opposing party to establish that a genuine issue as to any material fact actually does exist. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986). In attempting to establish the existence of this factual dispute, the opposing party may not rely upon the allegations or denials of its pleadings but is required to tender evidence of specific facts in the form of affidavits, and/or admissible discovery material, in support of its contention that the dispute exists. See Fed. R. Civ. P. 56(c)(1); Matsushita, 475 U.S. at 586 n.11. But “[a] plaintiff's verified complaint may be considered as an affidavit in opposition to summary judgment if it is based on personal knowledge and sets forth specific facts admissible in evidence.” Lopez v. Smith, 203 F.3d 1122, 1132 n.14 (9th Cir. 2000) (en banc). The opposing party must demonstrate that the fact in contention is material, i.e., a fact “that might affect the outcome of the suit under the governing law, ” and that the dispute is genuine, i.e., “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987).

         “In evaluating the evidence to determine whether there is a genuine issue of fact, ” the court draws “all inferences supported by the evidence in favor of the non-moving party.” Walls v. Cent. Costa Cnty. Transit Auth., 653 F.3d 963, 966 (9th Cir. 2011). It is the opposing party's obligation to produce a factual predicate from which the inference may be drawn. See Richards v. Nielsen Freight Lines, 810 F.2d 898, 902 (9th Cir. 1987). Finally, to demonstrate a genuine issue, the opposing party “must do more than simply show that there is some metaphysical doubt as to the material facts.” Matsushita, 475 U.S. at 586 (citations omitted).

         B. Analysis

         Mr. DaSilva first contends that he is entitled to summary judgment based upon Defendants' admission that the Cascade County Detention Center (“CCDC”) is overcrowded because it houses more prisoners than its designed capacity. Defendants do not dispute this contention but argue that the mere fact that CCDC was overcrowded is insufficient to establish a constitutional violation. Defendants are correct, overcrowding, by itself, is not a constitutional violation. Doty v. County of Lassen, 37 F.3d 540, 545 n.1 (9th Cir. 1994); Hoptowit v. Ray, 682 F.2d 1237, 1249 (9th Cir. 1982).

         At all times relevant to the Complaint, Mr. DaSilva was a pretrial detainee. A pretrial detainee's (as opposed to a convicted prisoner's) constitutional rights relative to conditions of confinement are addressed under the due process clause of the Fourteenth Amendment, rather than the Eighth Amendment's prohibition against cruel and unusual punishment applicable to convicted inmates. Oregon Advocacy Center v. Mink, 322 F.3d 1101, 1120 (9th Cir. 2003). In the past, it was assumed that the standard applicable to a pretrial detainee's conditions of confinement claims brought under the Fourteenth Amendment was the same state of mind requirement as an Eighth Amendment violation, i.e., subjective deliberate indifference to a substantial risk of serious harm. See Clouthier v. Cty. of Contra Costa, 591 F.3d 1232 (9th Cir. 2010). The United States Supreme Court, however applied an objective deliberate indifference standard to a pretrial detainee's claims of excessive force in Kingsley v. Hendrickson, 135 S.Ct. 2466, 2473 (2015). The Ninth Circuit has extended the Kingsley rationale to a Fourteenth Amendment failure-to-protect claim (Castro v. Cty. of Los Angeles, 833 F.3d 1060 (9th Cir. 2016) (en banc) and a pre-trial detainee's medical care claims (Gordon v. County of Orange, 888 F.3d 1118 (9th Cir. 2018)). See also Darnell v. City of New York, 849 F.3d 17, 36 (2nd Cir. 2017)(opining on a wide range of conditions of confinement claims brought by twenty pretrial detainees, the court held “[c]onsistency with the Supreme Court's decision in Kingsley now dictates that deliberate indifference be measured objectively in due process cases”).

         While the Ninth Circuit has not expressly extended the objective deliberate indifference standards to all conditions of confinement claims, out of an abundance of caution, this Court will analyze Mr. DaSilva's claims under the objective reasonableness test. That test requires a plaintiff to show that:

(1) The defendant made an intentional decision with respect to the conditions under which the plaintiff was confined;
(2) Those conditions put plaintiff at substantial risk of suffering serious harm;
(3) The defendant did not take reasonable available measures to abate that risk, even though a reasonable officer in the circumstances would have appreciated the high degree of risk involved-making the consequences of the defendant's conduct obvious; and
(4) By not taking such measures, the defendant caused the plaintiff's injuries.

Castro, 833 F.3d at 1071 & n.4. “With respect to the third element, the defendant's conduct must be objectively unreasonable, a test that will necessarily ‘turn[ ] on the “facts and circumstances of each particular case.” ‘ ” Id. quoting Kingsley, 135 S.Ct. at 2473 (quoting Graham v. Connor, 490 U.S. 386, 396 (1989)(ref. Restatement (Second) of Torts § 500 cmt. a (Am. Law Inst. 2016) (recognizing that “reckless disregard” may be shown by an objective standard under which an individual “is held to the realization of the aggravated risk which a reasonable [person] in his place would have, although he does not himself have it”)).

         With regard to Mr. DaSilva's overcrowding allegations, there are genuine issues of material fact regarding whether Defendants made intentional decisions with respect to the overcrowding situation at CCDC, whether those conditions put Mr. DaSilva at a substantial risk of suffering serious harm, whether Defendants took reasonable available measures to abate that risk, whether Mr. DaSilva suffered injuries as a result of the overcrowding at CCDC, and whether any failure to take reasonable available measures to abate the risk was the cause of an injury to Mr. DaSilva. There are insufficient facts in the record to establish that the overcrowding at CCDC led to any constitutional violation. Mr. DaSilva's motion for summary judgment will be denied on this claim.

         Secondly, Mr. DaSilva contends Defendants admitted they do not provide a legal library or computer searches to pre-trial detainees and they failed to answer his claims of prejudice and his claim that he had a right to literature. (Doc. 31 at 2.) Defendants admit that pre-trial detainees incarcerated at CCDC are not provided access to the legal library or computer access for general legal research searches. (Doc. 20 at 3.) But again, that admission, by itself, is insufficient to establish a constitutional violation.

         “Prisoners have a constitutional right of access to the courts.” Silva v. Di Vittorio, 658 F.3d 1090, 1101 (9th Cir. 2011) overruled on other grounds by Richey v. Dahne, 87 F.3d 1202, 1209 n. 6 (9th Cir. 2015). This right includes “both a right to meaningful access to the courts and a broader right to petition the government for a redress” of a prisoner's grievances. Id. at 1102. The Ninth Circuit differentiates between claims involving a prisoner's right to affirmative assistance, which is limited to the tools necessary to attack a sentence and “challenge the conditions of . . . confinement, ” and claims regarding a prisoner's right to litigate without active interference. Id.

         In Lewis, the Supreme Court explained that an “actual injury” must arise before a prisoner has the standing to assert either right. See Lewis, 518 U.S. at 349-52. An “actual injury” occurs when there is a “specific instance” in which a prisoner was denied access. Id. at 349. The injury requirement is “not satisfied by just any type of frustrated legal claim.” Id. at 354-55. It is only satisfied when an inmate is denied access with regard to a direct appeal from his or her conviction, a habeas petition, or a civil rights action. Id. “Impairment of any other litigating capacity is simply one of the incidental (and perfectly constitutional) consequences of conviction and incarceration.” Id. at 355.

         Mr. DaSilva argues Defendants' policy and practice prejudiced him from bringing this lawsuit with appropriate legal doctrine, legal precedent, and case law. (MSJ Brief, Doc. 32 at 5.) But Mr. DaSilva successfully filed this lawsuit and the right of access does not require a defendant “litigate effectively once in court.” Lewis, 518 U.S. at 354. Mr. DaSilva has not demonstrated an actual injury such as the “inability to file a complaint or defend against a charge.” Jones v. Blanas, 393 F.3d 918, 936 (9th Cir. 2004) (defining). Mr. DaSilva has presented insufficient facts to demonstrate that the lack of library or computer access caused an actual injury with regard to this case and the Court will not infer such an injury. Mr. DaSilva's motion for summary judgment regarding his access to the courts claims will be denied.

         Third, Mr. DaSilva contends Defendants admit that they used pepper spray and they failed to answer the constitutional violations inherent and inferred from those actions. (Doc. 31 at 2.) As set forth above, under the Fourteenth Amendment, “courts must use an objective standard” to decide whether “force deliberately used is . . . excessive, ” and “objective reasonableness turns on the ‘facts and circumstances of each particular case.' ” Kingsley, 135 S.Ct. at 2472-73 (quoting Graham v. Connor, 490 U.S. 386, 396 (1989)). The following considerations “illustrate the types of objective circumstances potentially relevant to a determination of excessive force:” “the relationship between the need for the use of force and the amount of force used; the extent of the plaintiff's injury; any effort made by the ...

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